McClish v. R. C. Young Feed & Seed Co.

• Decision Date: 10 October 1949
• Docket Number: No. 6001,6001
• Citation: 225 S.W.2d 910
• Parties: McCLISH v. R. C. YOUNG FEED & SEED CO.
• Court: Texas Court of Appeals

Page 910

225 S.W.2d 910

McCLISH v. R. C. YOUNG FEED & SEED CO.

No. 6001.

Court of Civil Appeals of Texas, Amarillo.

Oct. 10, 1949.

Rehearing Denied Nov. 14, 1949.

Boling, Smith & Allen, Lubbock, for appellant.

Carr & Carr, Lubbock, Crenshaw, Dupree & Milam, Lubbock, for appellees.

STOKES, Justice.

The appellees, R. C. Young, Vincent Carr and Owen Bilbreath, were conducting a feed and seed business at Lubbock under the trade name of R. C. Young Feed & Seed Company. They employed the appellant, I. D. McClish, as a laborer on or about February 5, 1947. About a month after he was employed, appellant was engaged in the warehouse with another employee removing hundred-pound sacks of feed, known as shorts, from stacks in the warehouse to a truck just outside one of the doors. Appellant was taking the sacks of feed from the stacks and placing them upon a small handtruck and the other employee was operating the handtruck and removing the sacks to the door where they were loaded into the truck. There were three stacks of feed designated in the record as No. 1, No. 2 and No. 3. They were located at the north wall of the warehouse and stack No. 1 was the first stack reached, stack No. 2 was the center stack and stack No. 3 was back against the north wall. The second and third stacks reached from the floor to the ceiling, a height of ten or twelve feet. Appellant had removed the sacks from the first stack and while he was engaged in removing them from the second stack, the third stack collapsed and a number of the sacks fell upon him and injured his back. Although appellees maintained more than three employees in their business, they were not subscribers to the Workman's Compensation Act and did not carry compensation insurance. Appellant filed this suit against them for damages which he alleged he suffered as a result of the sacks of feed falling upon him and alleged that the impact resulted in a compression and fusion of the first and second lumbar vertebrae, crushing the intervertebral discs between them and otherwise injuring his spine in the sacral area; that the injury had rendered him unable to earn more than half the wages he was capable of earning before the injury; that such impaired physicial condition would continue the greater portion of his natural life; and that he had been injured and damaged in the sum of $20,000 less such sum as was paid by appellees for medical and hospital bills following his injury, which sum was unknown to him but was known to them.

Appellees answered by a number of special exceptions, a general denial and specially pleaded that, if appellant was injured, it was the result of the manner and means used by him in removing the sacks of feed from the stacks and that the manner and means so used were the sole proximate cause of his injuries.

At the close of appellant's testimony, appellees presented to the court a motion for a peremptory instruction which was granted and the jury was instructed to return a verdict in their favor. Upon the return of such verdict, judgment was entered by the court denying appellant any relief to which he duly excepted and from which he has perfected an appeal to this court.

The controlling issue in the case is presented by the fifth point of error in which appellant asserts the court erred in instructing a verdict against him and in refusing to submit to the jury the issues raised by the pleadings and the evidence. Under this point he contends that the evidence showed the sacks of feed composing the third stack were not properly stacked and the stack fell upon him as a result of the improper manner in which they were placed in the stack. The second and third stacks of feed had been erected before appellant became an employee of appellees and he did not participate in the work of stacking them. The evidence does not make it clear whether any portion of the second stack fell upon appellant but it indicates all of the first stack and at least a considerable portion of the second stack had been removed before the accident, and the third stack was still intact. There was no direct proof that the feed was not properly stacked but appellant contends they were improperly stacked; that the improper stacking created an unsafe and dangerous place for him to work; and that such acts of appellees constituted negligence which was the proximate cause of his injury. He contends that these assertions were supported by his own testimony to the effect that he had worked for many years in handling and stacking feed and knew how it ought to be done. He said that if feed is stacked properly, it will not fall; that the proper way to erect a stack of feed, such as that involved here, is to place the first layer out from the wall a short distance so that, when completed, the stack will have a tendency to lean against the wall and not away from it. He contends further that, while there was no direct evidence that the sacks were improperly stacked, the fact that the stack fell was a circumstance and, in itself, constituted sufficient evidence to require the court to submit the case to the jury. In support of this contention he cites us to such cases as San Antonio & A. P. Ry. Co. v. Blair, Tex.Civ.App., 184 S.W. 566, and City of Beaumont v. Silas, Tex.Civ.App., 200 S.W.2d 690. These cases and many others by the courts of this state hold generally that where the instrumentality that caused injury is under the management of the employer or his servants and the accident is such as, in the ordinary course of things, does not happen if those who have its management use proper care, it affords reasonable evidence, in the absence of explanation by the employer, that the accident arose from want of care and that, under such conditions, it is error for the court to give the jury a peremptory instruction against the plaintiff. McCray v....